Jones & Ors v State of Queensland & Commonwealth of Australia

[1998] QSC 187

IN THE SUPREME COURT

OF QUEENSLAND

No. 183 of 1994
Brisbane

[Jones & Ors v State of Queensland & Commonwealth of Australia]

Before Mr Justice Muir

BETWEEN:

JOHN LEE JONES Elder and others of the DALUNGBARA,

BATCHALA and NGULUNGBARA PEOPLE of KGARI

(Great Sandy Region) as Trustees by Native Customary Law

Plaintiffs
AND:

THE STATE OF QUEENSLAND

First Defendant
AND:

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

CATCHWORDS:     PROCEDURE - strike out application proceedings - relevant considerations - sufficiency of particulars -  requirements of a native title right

Counsel:Mr J.L. Jones, in person, for the plaintiffs

Mr R.V. Hanson Q.C. and Mr G.J. Koppenol for the first defendant

Mr J.D. McKenna for the second defendant                 

Solicitors:  The Crown Solicitor for the first defendant

The Australian Government Solicitor for the second defendant              

Hearing date:               23 July 1998

REASONS FOR JUDGMENT - MUIR J

Judgment delivered 18 September 1998

The background to this matter is explained in reasons for judgment delivered by me on 29 May 1998 in respect of an application by the first defendant (The State of Queensland) for an order that the plaintiffs file and serve documents in compliance with orders in relation to particulars made by Dowsett J on 3 February 1998 and that, in default of compliance with any such order as to filing and service, the action be stayed. I then extended the time for compliance with the order of Dowsett J until 6 July 1998 and adjourned the application to 9 a.m. to 13 July 1998. On 8 and 10 July 1998 the first and second defendants respectively filed notices of motion claiming that -

(a)The plaintiffs' further amended statement of claim be struck out under O 22 r 31 and/or 32 of the Rules of the Supreme Court or in the Court's inherent jurisdiction, on the ground that it shows that the action is frivolous or vexatious and/or it tends to prejudice, embarrass or delay the fair trial of the action.

Alternatively, an order was sought that the action be stayed or dismissed under O 23 r 1 of the Rules of the Supreme Court or under the inherent jurisdiction of the Court on the grounds that the plaintiffs have failed to comply with the order of Mr Justice Dowsett made on 3 February 1998 and orders made by me on 29 May 1998 and 16 June 1998.

On the hearing, Mr Hanson Q.C. who, with Mr Koppenol, appeared for the first defendant, conceded, at least for the purposes of argument, that there had been compliance with paragraphs 1.4, 1.6, 1.7(a), 1.8 and 1.9 of the order of Dowsett J but submitted that there had been a failure to comply with the requirements of paragraphs 1.1, 1.5, 1.7(b), (c) and (d). Mr Hanson's argument was principally directed to the alleged failure to comply that the requirements of paragraph 1.5.  That paragraph required the plaintiffs to file and serve a document or documents containing -

“1.5An outline of the facts to be relied upon by the Plaintiffs to prove a contemporary connection with the title claim area (“area”) including:

(a)the Plaintiff group's possession, occupation, use and enjoyment of the area;

(b)the acknowledgment and observance of the traditional laws and customs referred to in Order 1.4 above; and

(c)any Dreaming tracks, stories and ceremonies or other sites of special significance of the Plaintiff group concerning the area, including, but not limited to those sites that have been listed, recorded or notified under the Cultural Record (Landscapes Queensland and Queensland Estate)Act 1987 (Qld).”

It was further submitted that the material supplied thus far in response to the order showed that it would be impossible for the plaintiffs to provide particulars to substantiate a claim to native title over the subject land as -

“... the plaintiffs cannot and never will be able to satisfy those requirements of showing a contemporary connection with the land of a group of people, a cohesive group, who live by and acknowledge a current code and customs.”

Mr McKenna, who appeared for the second defendant, adopted Mr Hanson's submissions.

In Mason v Tritton (1994) 34 NSWLR 572, Priestley JA, with whose reasons Gleeson CJ agreed, summarised the matters which must be proved by a native title claimant in order to succeed. The summary concluded as follows -

“2.The native interest must be a recognisable part of a system of rules observed by an identifiable group of people connected with a particular locality: Brennan J (at 58,70); Deane J and Gaudron J (at 86, 88, 108); Toohey J (at 186-187, 188).

3.A person asserting entitlement to enjoyment of the interest at the present day, must show biological descent from the group which was observing the system of rules of which the interest was part; that is show biological descent dating back to just before the establishment of the common law: Brennan J (at 70); implicit in Deane, Gaudron and Toohey JJ in the references given in 2 above.

4.A person asserting such entitlement must also show that the biological descendants of the pre-common law group have continued and are continuing to observe the system at the time the claim is asserted. (References as for 3 above.)”

At the conclusion of the summary, Priestley JA observed -

“The difficulties which persons seeking to establish a present day native right recognised by the common law will frequently encounter, even since the recognition by Mabo v State of Queensland [No 2] of the possibility of their existence, were recognised in the case itself. Deane J and Gaudron J said the practical result of the decision ‘would be largely, and probably completely, confined to lands which remain under Aboriginal occupation and use’ (at 109). Brennan J, having briefly stated what would be necessary to show that ‘the traditional community title’ of a particular clan or group could ‘be said to remain in existence’ (at 59-60), continued (at 60):

‘... However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition.’”

In Kanak v National Native Title Tribunal (1995) 61 FCR 103, after referring to passages from the judgment in Mabo v State of Queensland [No 2], the Court observed -

“It follows from these passages that the content of native title recognised by Mabo (No 2) is determined by the laws and customs of the indigenous inhabitants. But it is essential that there be an identifiable community, which has retained the requisite connection or association with the land claimed since the time the Crown acquired the radical title to the land. In order for native title to survive, there must have been an appropriate relationship between a particular clan or other group and the land. The precise nature of that relationship has not yet been authoritatively determined. However, the judgments refer to enjoyment of the land by the clan or group and appear to contemplate some continuing physical connection or association: see Coe v Commonwealth (1993) 68 ALJR 110 at 119, per Mason CJ. Whatever the nature of the association, however, native title can be enjoyed only by members of an identifiable community who are entitled to enjoy the land under the traditionally based laws and customs, as currently acknowledged and observed, of that community. Individuals may have native title rights that are protected, but these rights are dependent upon the existence of communal native title and are ‘carved out’ of that title. The only persons entitled to claim native title are those who can show biological descent from the indigenous people entitled to enjoy the land under the laws and customs of their own clan or group. (An adoptive relationship perhaps may be enough; but that is not a question which must be decided in this case.)”

These passages assist in showing the significance of the particulars under consideration, and why the defendants contend that, in the absence of satisfactory particulars, the plaintiffs claims should be struck out.

I now turn to a consideration of whether the plaintiffs have failed to comply with paragraphs 1.1, 1.5, 1.7(b), (c) and (d) of Dowsett J’s order.

The plaintiffs have made an attempt at compliance with the requirements of paragraph 1.1 of the order but the particulars provided do not contain the detail which the order requires. For example -

Sub-paragraph (a) requires an outline of “the composition of the plaintiff group (for example, by reference to family, kinship, language)”. There is no reference to such concepts in sub-paragraph (a) of the particulars provided.

Sub-paragraph (b) does not address the requirement that there be an outline of “any relevant family groups within the plaintiff group”.

Sub-paragraph (c) is probably ambiguous. As I read it, it states that the criteria for membership of the plaintiff group (as defined) is being a lineal descendant of a person born within a particular geographical area.

Sub-paragraph (d) is largely unanswered. The plaintiffs appears to place considerable reliance on a list of names “in the confidential registry delivered to Crown Law on 30 June 1998”. That list, whilst it does contain names of persons, does not provide particulars of matters such as place of residence, date and place of birth, genealogy and the basis upon which a person listed is said to form part of the plaintiff group.

The particulars with respect to paragraph 1.7(d), (c) and (d) do not provide the degree of particularity required by the order. If the facts referred to in paragraph 1.7 of the plaintiffs’ particulars are the only facts on which the plaintiffs are able to rely to establish “an historical connection with the area” the subject of the claim, their claim may be thought to be of dubious merit. 

Paragraph 1.5 is the focus of Mr Hanson's submissions. It is important to note that paragraph 1.5 is prefaced with the words “An outline of the facts to be relied upon by the Plaintiffs to prove a contemporary connection with the title claim area”.

Sub-paragraph (a) deals with “possession, occupation, use and enjoyment of the area”. The particulars provided in respect of that sub-paragraph state merely that some members of the  Dalungbara, Batchala and Ngulungbara people have always lived within the boundaries of “the traditional lands”, some have worked in the sugar industry and the timber industry on Fraser Island and that some identified “family groups” now reside at specified addresses in the subject area. There is thus little in the way of relevant “facts” as to possession, occupation, use and enjoyment of the area, as opposed to broad generalisations.

Sub-paragraph (b) makes the assertion that “... customs (such) as adoption was commonly practised. It then gives an instance of one tribal marriage. This is, at best, and if proved, faint evidence of observance of traditional laws and customs.

Sub-paragraph (c) does not  actually state any material fact to do with “Dreaming tracks, stories and ceremonies or other sites of special significance ...”. It refers only to “sites” and then makes the assertion that “the most notable Aboriginal cultural sites are listed in the management plan of Fraser Island and the Great Sandy Region”. It is not the provision of a particular to state that information may be obtained from a source other than the particulars provided. Nor does the material provided serve as “an outline of the facts to be relined on” in the relevant respect. 

As matters stand, the particulars, apart from failing to constitute compliance with the order, do not seem to me to be sufficient to make out an arguable case for a native title interest within the principles set out earlier. However, I do not think it necessary or desirable to decide that question now. The plaintiffs appear to me to have made a serious attempt at compliance with the order and I am not confident that they will be unable to provide sufficient particulars to support an arguable case. In the circumstances, rather than attempt on the material before me to determine whether the allegations in the statement of claim, in the light of the particulars provided, are “manifestly groundless” or so obviously untenable that (they) cannot possibly succeed,” I consider that the most appropriate course is to give the plaintiffs yet a further opportunity to provide material in compliance with the order of Dowsett J. In particular, it is desirable that the plaintiffs have the opportunity of providing the particulars required by paragraph 1.5 (so as to demonstrate an arguable case of continued uninterrupted observance of relevant traditional laws and customs) and by paragraph 1.7 (so as to prove an historical connection with the area). I extend until 5 p.m. on 2 October 1998 the time by which the plaintiffs are to comply with paragraphs 1.1, 1.5, 1.7(b)(c) and (e) of the order of Dowsett J. made on 3 February 1998.           I am sitting in Chambers between 5 and 17 October. If the defendants wish to re-enliven before me the applications under consideration I will reserve sufficient time to dispose of the matter. I encourage the plaintiffs to make diligent efforts to provide further and more detailed responses to the paragraphs of the order of Dowsett J. listed above I adjourn both applications to a date to be fixed to be brought on by any party on three days notice in writing to the other.  I order that the costs of and incidental to each application be reserved.